Do Life Insurance Beneficiary Rules Supersede Those of a Will in New York?

Life insurance can be a great investment to alleviate the financial burden on your surviving family should you die unexpectedly. The policy can help cover the costs of your funeral, pay off outstanding debts, and ensure your family is provided for financially.

However, there can be issues that arise regarding wither your life insurance beneficiary rules will supersede those of your will. When you die, whether you have a will or not, your estate must go through the New York State probate process.

last will and testament in a court

If you have a will, then the Surrogate Court will use probate rules to ensure your estate is handled according to your will. If you do not have a will, then the Surrogate Court will use an administrative proceeding to handle your estate and its distribution to surviving family members.

Yet, if you have a life insurance policy and a will, the Court will follow the beneficiary rules of the insurance policy and not your will, in most cases. So, if you named your wife as the beneficiary years ago when you got the policy and then named your children as beneficiaries in your will, your wife would receive all the proceeds from the life insurance policy.

Exceptions When Your Will Supersedes Life Insurance Beneficiary Rules

There are a few different exceptions where you will supersede the life insurance beneficiary rules:

Exception Example #1

You named your wife as beneficiary of your life insurance. However, you got divorced but forgot to update your life insurance. Your divorce decree included a statement where your ex-wife gave up all rights and claims to life insurance, retirement accounts, and other such assets. In this situation, then the beneficiary or beneficiaries named in your will would receive the life insurance proceeds.

Exception Example #2

You named your wife as beneficiary of your life insurance. Your wife passed away before you. You forgot to update your life insurance. Upon your death, if you had named beneficiaries in your will, they would receive the proceeds of the life insurance. If you did not, then the proceeds become part of the cash assets for your estate and are distributed according to your wishes.

Exception Example #3

You named your two children as beneficiaries of your life insurance. One of your children passed away before you did. Upon your death, the percentage that was to go to the child that died would either be distributed based on the beneficiary named in your will or become part of the cash assets of your estate and distributed accordingly.

Please keep in mind, these are very general examples to demonstrate when a will supersedes a life insurance beneficiary. There can be complex situations that can and do vary from one family to another.

In addition, for other types of accounts that have named beneficiaries like savings accounts, retirement accounts, investment accounts, etc., the beneficiaries named on these accounts would also supersede those named in a will in most cases.

happy Couple planning investment With Financial Consultant

Therefore, it is essential to get into the habit of reviewing named beneficiaries listed on life insurance and financial accounts annually. Updating beneficiaries is not difficult, and you may even be able to do so online.

You should also make it a habit to review and update your will annually, as necessary, with help from a New York probate attorney to ensure that the will reflects your current intentions and wishes.

For further assistance with creating or updating a will or assistance with updating beneficiaries on life insurance and financial accounts in Queens, Brooklyn, Manhattan, Jamaica, or New York City, please feel free to contact Ledwidge & Associates, P.C. at 718-276-6656 today!

What Is Legal Separation in New York?

When a married couple is having marital issues but they are not sure if divorce is the answer to their problems, they can choose a legal separation in New York. Getting a legal separation is also beneficial when the couple cannot financially afford to get a divorce, for religious reasons, or to continue to enjoy financial benefits like joint tax returns and health insurance.

A couple is not legally separated just because one person moves out of the marital home or the couple starts living separate and apart lives while remaining in the same home. Living separate and apart means each person is living their own life without the normal obligations associated with being married like sleeping in the same bedroom and being intimate with each other. In other words, the couple essentially becomes roommates who have their own separate lives.

To be considered legally separated, the couple must start the process of filing for separation in NY and sign a legally binding separation agreement.

Separation agreement on a table

What Is the Process for Getting a Legal Separation in New York?

The first step is for each party to consult with a separation agreement and divorce lawyer. To be considered legally separated in New York, the couple must create and draft a separation agreement and both voluntarily sign the document so it can be legally enforced should one party violate the agreement.

What Information Needs to Be in a Separation Agreement?

The best way to decide what information to include in a separation agreement is to look at what matters must be resolved if you were filing for divorce. You want to include details about such aspects, including but not limited to:

  • Child Custody: How will you and your spouse share custody of your minor children? Will you split parenting responsibilities equally with equal time with each parent? Will one parent serve like a custodial parent, where they have the children more often and the other parent less often?
  • Child Support: How much will you pay or receive for child support? If you are agreeing to equal parenting time, then child support may not be necessary, as long as you include in your separation agreement that each parent is responsible financially for the children while they are in the care of that parent.
  • Child Access and Visitation Schedule: You and your spouse will need to decide how you want to split parenting time. This is referred to as child access. You will want to create a visitation schedule that details who gets the children on weekends, holidays, school breaks, and other such times throughout the year.
  • Spousal Support: If one person is a “stay-at-home” parent, you need to decide how much, if any, spousal support you should pay or receive. You could also include special terms and conditions, such as the person receiving spousal support will make an effort to find gainful employment in a specified period of time.
  • Division of Marital Assets: You and your spouse need to decide how you will split and divide marital assets such as bank accounts, stocks, bonds, investments, real property, real estate, and so on. If you and your spouse are not sure, you can still include wording that addresses liquid assets.
  • Marital Home: Who will get to remain in the marital home? Is the home large enough so both parents could remain in it with the minor children, but live separate and apart lives?
  • Decision-Making for Minor Children: Who will be responsible for making major decisions for your children? Do you need to consult with the other parent first, or are they okay with letting you make the decision and informing them of it later?
Gavel in the foreground, couple talking in the background

In addition to these details, there are other details specific to separation agreements that you will want to include, such as:

  • Health Insurance: Who will pay for health insurance? If you are on your spouse’s policy, will you remain on it or do you have to get your own?
  • Social Events/Activities with Children: Who will attend school and social events and activities? Are you agreeable to allowing the other parent to attend as well or would you prefer you take turns?
  • Vacations and Travel with Children: Do you or your spouse need to obtain permission from each other before taking children on vacation or traveling with them out of New York?
  • Division of Marital Debts: How will you split and decide who is responsible for which bills and debts you have incurred together, such as the house payment, car payment, utilities, and credit cards?
  • Home Maintenance and Upkeep: Who is financially responsible for maintaining the marital home?
  • Insurance Policies: Who is going to pay for homeowner’s insurance, auto insurance, and life insurance?
  • Wills and Trusts: Do wills and trusts need to be updated to reflect changes because of the separation?

Please keep in mind, this is just a general overview of the different types of details you will want to include in a separation agreement. The exact details of your agreement can and will vary based on the specific circumstance you and your spouse are filing for separation in NY.

Are We Still Legally Married After Obtaining a Legal Separation in NY?

A legal separation in NY does not dissolve your marriage. You are still legally married while separated. Should you and your spouse decide while living apart that you want to try to save your marriage through counseling, dating, and other such interactions, you are free to do so.

In the event you decide to start living together and reconcile, then your legal separation agreement can be written so that it becomes void. However, some couples choose not to do this, but rather require both parties to sign another agreement dissolving the separation agreement. This way, if the reconciliation falls through, the couple does not have to go through the process of filing for separation in NY again.

Furthermore, some couples legally separate but have no intention of ever reconciling, as when they are not allowed to get divorced due to religious reasons. Even though they are still legally married, the couple will need to decide whether they can date and see other people since they are no longer living together and have no plans to reconcile.

What if We Decide We Want to Get Divorced?

Getting a legal separation can be a precursor to getting a divorce in the future. However, you must have lived apart for a period of one year from the date your separation became legal in New York. Once you have met the waiting period, the divorce process can often be resolved quickly and in a matter of months.

Do We Have to Create a Divorce Agreement to Get Divorced?

If you already have a legal separation agreement in place, you can request that this be converted into your divorce agreement. However, the courts may deny the request in cases where the separation agreement favors one party over the other.

To illustrate, let’s assume the separation agreement is written so that you will retain the marital home and a sufficient amount of marital assets which would give you a financial advantage over the other party. The court will not allow this and could preclude certain aspects of the separation agreement from being converted into the divorce agreement.

Alternatively, some couples choose to request their separation agreement be kept apart from their divorce decree and divorce agreement. In this case, the separation agreement is said to survive the divorce decree. The terms and conditions of the agreement continue to remain in effect after the divorce is granted.

Woman staring at her wedding ring - divorce concept

As you can see, filing for legal separation vs. divorce in NY can be beneficial in certain situations. Before deciding whether separation is best for you and your spouse, you each should consult with a qualified lawyer to fully understand legal separation laws in New York.

To decide whether getting a legal separation or divorce in NY would be best for you, including Queens, Brooklyn, Manhattan, Jamaica, and NYC, please feel free to contact Joseph A. Ledwidge PC at 718-276-6656 to schedule a consultation today!

Naming Beneficiaries on Life Insurance While Having a Trust in New York

Many people consider creating a trust either to complement their will or in place of a will. There can be several tax benefits to using a trust for certain types of assets, as well as avoiding hefty inheritance taxes and estate taxes.

If you are considering creating a trust in New York, there are several key things you need to know about naming beneficiaries on life insurance, 401(k)s, IRAs, and other such financial accounts with named beneficiaries.

To begin with, there is a difference in how insurance policy beneficiaries can be named, depending on whether you want to create a revocable living trust or irrevocable living trust. In a revocable living trust, the grantor of the trust can continue to make changes and update the trust until their death. They also can draw distributions from the trust.

In an irrevocable living trust, once it is established, it cannot be updated, changed, altered, or modified without the beneficiary’s or beneficiaries’ permission. All rights and claims the grantor previously held to the assets moved into an irrevocable trust are given up.

Revocable Trusts and Naming Beneficiaries on Life Insurance

Business photo showcasing money that is being held by the trustees for the beneficiaries

If you want the proceeds from your life insurance to go directly into your revocable trust, then you need to update the policy to name the trust as your primary beneficiary. There is no need to add secondary beneficiaries since you have a trust.

On the other hand, let’s assume you wanted your wife to have access to the life insurance proceeds immediately, without having to wait for a distribution from your trust. Then you would want to name her as the primary beneficiary and your trust as the secondary beneficiary. This way, if your wife passes away before you do, then the proceeds go directly to your trust upon your death. 

Irrevocable Trusts and Naming Beneficiaries on Life Insurance

The process of naming beneficiaries on life insurance policies with irrevocable trusts is similar to that of revocable trusts. You could list your trust as the primary beneficiary. Then the person designated as the beneficiary of the trust would receive the proceeds from your life insurance.

You could also list a person as the primary beneficiary and the trust as the secondary beneficiary. If the primary beneficiary is still alive upon your death, then they receive the proceeds from the life insurance policy. If they are also dead, then the proceeds are transferred to the trust and the beneficiary of the irrevocable trust.

What About Naming Beneficiaries on Other Types of Accounts?

For any type of account where you name a beneficiary, like a 401(k), IRA, savings account, etc., you would want to list your trust as the primary beneficiary when you want the proceeds to be transferred directly into the trust.

Or, if you wanted all or some of the proceeds to go to a named beneficiary, then you would list them as the primary beneficiary or stipulate the percentage they would receive upon your death. You would list your trust as secondary or as a co-benefactor and what percentage should be transferred into the trust.

What if I Named Beneficiaries of My Life Insurance in My Will Too?

Senior couple planning their investments with financial advisor

The New York State Probate Process would ensure that the beneficiary or beneficiaries named in your insurance policy received the proceeds regardless of the beneficiaries you named in your will. If you named your trust as the beneficiary, then the trust would receive the proceeds.

For further questions about revocable and irrevocable trusts, naming life insurance beneficiaries, and naming beneficiaries on 401(k)s, IRAs, and other financial accounts in Queens, Brooklyn, Manhattan, Jamaica, or New York City, please feel free to contact New York probate attorney, Ledwidge & Associates, P.C. at 718-276-6656 today! 

Why Title to Real Estate Often Complicates Estate Administration in New York

When a loved one passes away, their estate will need to be managed. However, doing so successfully can become far more complex where titles to real estate exist. We take a closer look at why probate law in New York State can cause controversy among beneficiaries and how executors can go about closing an estate in NY properly.

Insufficient Asset Gathering

Many estate litigation cases have come about as the result of information coming to light regarding real estate ownership that executors or beneficiaries weren’t previously aware of. In these instances, thorough asset gathering would have helped avoid conflict.

It is the job of the executor to ensure that absolutely all of the deceased’s assets have been discovered, gathered, and kept in a safe place. This part of estate administration can require a lot of legwork and time.

However, in doing so, an executor can completely reduce or eliminate further complications. No longer will it be possible for family members to assume ownership of property because enough information has been gathered and secured properly.

Ownership

Real estate ownership can exist in many forms. The deceased may have been the sole owner of the real estate in question or may have owned property with another. Ownership can also exist in shared form, such as joint tenancy of a property. Types of ownership, including joint tenancies, won’t result in any ownership being passed to beneficiaries.

While this can certainly result in confusion and controversy among estate beneficiaries, closer investigation into the type of ownership and the New York state beneficiary laws that govern them can help avoid unwanted surprises.

Value

Real estate is a high-value item, which can also cause controversy. In a separation, for example, it will be important for the deceased to have stated their intent for the property clearly. Otherwise, an ex-spouse may assume they have full ownership when they do not. This kind of misunderstanding can result in much disappointment once the time comes to execute the will.

Of course, even before a loved one passes away, ensuring that both parties in the relationship have clearly discussed what will happen to real estate upon their deaths can provide the details an executor of estate in New York needs to fulfill their responsibilities.

Help with Estate Administration

Although it is the executor’s job to ensure a deceased loved one’s assets are properly identified, secured, and distributed, the amount of work involved can be overwhelming. It is in these cases that additional help can offer many benefits.

If you’re the executor of an estate, you can research probate law to discern whether or not you’ll need help to administrate the estate. If you’re finding the probate process difficult to navigate, contact the estate administration attorneys at Ledwidge & Associates, P.C. We put a combined 32 years of probate and estate administration experience to work for you. Call (718) 276-6656 for a consultation.

How Long Does a No-Fault Divorce Take in NY?

Getting a divorce in NY and completing the divorce process will vary for each and every couple. One couple could have an amicable, uncontested divorce and have it finalized within a few months. On the other hand, another couple could have a contentious, contested divorce that takes a year to fully resolve.

Regardless of what type of divorce proceeding you are facing, there are a few key points you do need to be aware of before filing for divorce:

  • Couples in New York can obtain a no-fault divorce and do not need to establish grounds why they want the divorce. However, they must still demonstrate that the marriage is broken and there is no hope of reconciliation.
  • The couple must live apart and separate for at least six months to show the marriage is broken. You can file for separation and initiate the divorce process, but the divorce will not be finalized until this six-month requirement is satisfied.

At least one person has to be a resident of New York. You have to live at least two years in New York to be considered a resident. There are also other residency qualifications that could be used to meet the residency requirement.

Amicable, Uncontested New York No-Fault Divorce Process

The couple went to a lawyer to conclude an agreement on the divorce.

The New York no-fault divorce process for an amicable, uncontested divorce is much speedier than a contentious, contested divorce. In an amicable divorce, the couple is agreeable and willing to negotiate and agree on various aspects of the divorce, such as:

  • Division of Marital Property and Assets
  • Disposition of the Marital Home
  • Child Custody
  • Child Access
  • Child Support
  • Spousal Support

The couple does not always have to rely on mediation, arbitration, or the court for assistance in making these important decisions. They can also avoid going to court if they can resolve all matters on their own with help from their respective divorce lawyers. As such, once the marriage has been broken for six months, the couple can file and could have the divorce decree in a few months.

Contentious, Contested New York No-Fault Divorce Process

How long a no-fault divorce in New York will take when it is contentious will vary. At the very least, as long as the divorcing couple is open to negotiation and using mediation or arbitration to resolve outstanding issues, they could have their divorce resolved in about six to nine months after satisfying the six-month broken marriage requirement.

Yet, when the divorce is heated and both parties are not willing to work together but want their matters litigated in court, then the process can take much longer—sometimes more than a year. The thing contentious divorcing couples need to remember is that when matters are litigated in court, the judge will make all decisions relating to the various aspects of the divorce proceeding.

unhappy married couple arguing in lawyers office get divorced

It is important to point this out because the judge will determine what they think is best, as well as what is in the best interests of any minor children. So, you may not get the result you want if you want every matter litigated. This is why attempting mediation and arbitration can be a better solution in resolving matters in a contested divorce in NY.

Many different factors can affect how long the New York no-fault divorce process takes. It is highly recommended to retain the services of a qualified New York divorce lawyer to represent your interests, provide sound legal advice, and help expedite the divorce process.

To find out more about getting a divorce in NY, including Queens, Brooklyn, Manhattan, Jamaica, and NYC, contact Joseph A. Ledwidge PC at 718-276-6656 to schedule a consultation today!

Understanding the Role and Responsibilities of an Executor of Estate in New York

As you prepare your will that details your intentions, it is essential to take time to consider who will be your executor of an estate in New York. The duties of an executor require taking care of many fiduciary tasks and functions to fully satisfy your intentions.

An executor can be any person of legal age able to carry out the required duties. You do not have to name a relative as your executor. You could name a business, your wills and estate lawyer, a business partner, or a friend. Ideally, you want to choose someone you can trust and rely on.

last will and testament with dollar

Duties of an Executor of Estate in New York

The executor you select also needs to understand their role and responsibilities to successfully carry out their duties. In general, they will be tasked with accounting for all of your assets, property, investments, financial accounts, and debts. They will also be responsible for filing your death certificate and will with the probate court in New York, called the New York Surrogate Court.

The probate process is required to ensure the will is legally binding, as well as to address any potential issues where one or more beneficiaries may attempt to contest the will. Most executors do seek assistance from a qualified probate lawyer to ensure all legal obligations are met.

Probating the will is just one duty of an executor. The executor will need to safeguard all assets until such time they are to be liquidated and/or distributed to beneficiaries. If the deceased owned a business, then the executor is required to oversee its operations.

Additionally, they will inventory and appraise all assets to establish their value. Prior to distributing the estate to the beneficiaries, the executor must satisfy all debts claimed by creditors, as well as income and estate taxes.

Furthermore, the executor should take steps to protect the interests of the beneficiaries. This could require keeping accounting records and other financial reports to show that the assets have been protected.

Executors Have to Manage Various Obligations

As you can imagine, the duties of an executor can be rather complex. They have to manage various obligations, depending on the size and complexity of the estate.

For instance, they may need to collect rental income from rental properties. They might be required to make investments to keep assets from depreciating. They could have to take over running a business, as well as related business duties like making operational decisions.

In addition, they have to maintain all physical property in its current condition. This can require performing maintenance and repairs as needed. To better manage these various obligations, executors can seek outside help from accountants, lawyers, maintenance technicians, and other professionals as needed.

Businessman Working Dashboard Strategy Research Concept

Executors May Have to Deal with Conflicts

Aside from managing the estate of the deceased and carrying out their intentions, many executors have to deal with conflicts from relatives, friends, and beneficiaries who dispute the will or disagree about how assets should be divided.

Understanding the role and responsibilities of an executor of an estate in New York is essential to select the right person. It is highly recommended you inform the person you name as executor so they can also review what duties and responsibilities they will need to perform.

For further assistance in preparing your will and selecting an executor or obtaining help with the probate process in New York, please feel free to contact Joseph A. Ledwidge PC at 718-276-6656 today!

Questions for a Probate Attorney: How Does the New York Probate Process Work?

The New York probate process will vary, depending on whether the deceased had a will or trust or had no such documents expressing their last wishes. After someone dies, their assets, property, and other belongings, which are called their estate, have to be distributed to surviving loved ones, called heirs.

In addition, any outstanding debts must be paid. There are also estate taxes that have to be paid. To accomplish this, the probate process is used in New York through what is called the Surrogate Court. The role the Surrogate Court plays in the probate process will vary, depending on the documentation or lack thereof the deceased had.

Business man pointing the text: What Are The Rules?

Ultimately, their primary role is to oversee the estate and approve distributions to the appropriate parties. Before any distributions can be made to charities and surviving loved ones, the estate must first pay outstanding debts and estates taxes.

If the deceased had a will or trust, then they should have named an estate executor. This person is responsible for performing specific tasks to distribute the estate. They will obtain permissions from the Surrogate Court as needed throughout the probate process.

If the deceased did not have a will or trust or did not name an executor, the Surrogate Court will appoint an estate administrator. The administrator has similar responsibilities as an executor. If the surviving loved ones do not believe the estate is being handled correctly, there are specific legal actions they can take, such as contesting a will or requesting the removal of the executor.

What Steps Are There in New York Probate Process?

In general, there are three basic steps in the New York probate process, as follows:

Step 1: Inventory and Appraise the Estate

The executor will need to review the deceased’s assets. They have to make an inventory of all property. Afterward, they must assign a monetary amount to each item, which could require expert appraisals. The overall objective is to determine how much the estate is worth.

Step 2: Satisfy Outstanding Debts and Pay Taxes

The next step is to pay any outstanding debts the deceased owed. This could include loans, credit cards, and other financial obligations. The executor will also pay estate taxes owed. If there is not sufficient cash to pay all debts and taxes, the executor can liquidate assets to ensure they are paid.

Step 3: Distribute the Remaining Estate to Heirs

If there is a will, then the executor makes distributions based on the last wishes of the deceased. In some cases, where assets had to be liquidated, the heirs may not receive the assets or property promised in the will.

If there is a trust, the probate process will vary slightly, depending on the type of trust the deceased had. If there was no will or trust, then the court-appointed administrator takes care of each of these steps.

senior adults discussing important topic

Please keep in mind, this is just an overview of the process. New York State probate rules, the size of the estate, and other factors that could require additional steps are not covered here. Nor should the information presented here be considered legal advice. This is why it is important to make a list of questions for a probate attorney to get the answers and legal advice you need.

A probate attorney can also help with the execution of a will or trust, as well as provide guidance for the executor during the probate process. For further legal advice and assistance with the New York probate process, please feel free to contact Joseph A. Ledwidge PC at 718-276-6656 today!

What Does Administering a Trust Involve?

Part of estate planning requires you to decide if you want a will, a trust, or both. Some people choose to have a will for specific items and a trust for others. There are benefits of having a trust in place beside or in addition to a will. To help you learn more about administering a trust and what is involved in a trust administration, it is important to know the basics about trusts.

What Is a Trust?

A trust is a legal document that describes various properties, bank accounts, investments, and other such assets owned by a person. This person is called the Settlor when creating a trust. The Settlor designates what property and assets will be included in the trust and transferred to the trust administrator or Trustee.

The job of the Trustee is to administer the trust according to the instructions of the Settlor. The Trustee has specific requirements like ensuring they protect the property and assets of the Settlor until such time they are to be distributed after their death.

Are There Different Types of Trusts?

Financial Advisor Talking To Senior Couple At Home

Two general types of trusts exist in New York. A person can have a testamentary trust or a living trust. With a testamentary trust, the trust does not become active until the Settlor dies. With a living trust, the trust becomes active while they are still alive, once it is executed correctly. Administrating a trust also begins while the person is still alive when they create a living trust.  

In addition, there are two different types of living trusts: Irrevocable and Revocable. An irrevocable living trust is where the trust cannot be changed, amended, terminated, or modified without permission from the named beneficiary. Furthermore, any assets listed in an irrevocable trust are transferred out of the estate.

A revocable trust, on the other hand, retains the assets as part of the Settlor’s estate. This allows the Settlor the option to modify, change, terminate, or amend the trust anytime they desire. While the Settlor is alive, any income or other financial gains continue to be distributed to the Settlor as stipulated in the revocable trust. It is only after their death that the assets and money are distributed to the named beneficiaries.

How Does a Trustee Perform Trust Administration?

A Trustee can have several assigned responsibilities and duties to carry out for the Settlor long before they pass away. One of the most common reasons for family disputes and legal issues is because of improper trust administration by a Trustee.

Administering a trust requires more than just attempting to honor the wishes of the Settlor. A Trustee must also be prepared for:

• Asset Management and Protection
• Investing Trust Resources as Directed
• Trust Investment Management
• Managing Trust Distributions
• Maintaining Accurate Trust Records
• Adhering to the Terms of the Trust
• Maintaining Communications with the Settlor
• Maintaining Communications with Beneficiaries After the Settlor’s Death
• Handling Conflicts Between Beneficiaries
• Knowing When a Trust Has to Go Through the New York Probate Process
• Filing and Paying Any Required Taxes

Trust administration requires selecting the right Trustee. This is why most people retain the services of a New York probate attorney to act as their Trustee rather than a close family friend or relative.

Couple Discussing Paperwork With Financial Consultant

By retaining an attorney for administering a trust, they remain objective and can help alleviate any family disputes or other issues that could arise after your death. Additionally, they can offer sound legal estate, will planning, and trust administration advice to ensure your assets and property are protected and distributed according to your intentions.

For further information about trusts and assistance in creating one, please feel free to contact Joseph A. Ledwidge, P.C. at 718-276-6656 today!

For What Reasons Do I Need a Probate Attorney in New York?

In New York, when a loved one dies, their estate, including all bank accounts, investments, assets, and real estate must go through the New York probate process. This process will occur whether the loved one left a will or died without one.

Sometimes the probate process is still needed if a trust was not properly created. The process can vary and be rather complex depending on several different factors, such as:

• Is the will clearly written with the intentions of the deceased?
• When was the will last updated?
• What is the current marital status of the deceased?
• If there were recent updates, were they made by a person of sound body and mind?

Even when the deceased makes their intentions very clear about their wishes for after their death, it does not always alleviate potential tension and disagreements between surviving family members.

family giving their last goodbyes at the cemetery

To address certain issues and concerns, it is highly recommended to seek assistance and guidance from a qualified probate attorney. Whether you are the executor of the estate or concerned your loved one’s wishes are not being carried out, having an attorney on your side can be beneficial.

Other reasons why you need a probate attorney in New York include:

1. Submitting contracts during probate that are legally binding and valid.

For instance, a parent leaves their vacation home to their four children. Two of the children have no interest in the home, while the other two want to share it equally. A contract would be needed to sell the interest in the vacation home to the children who want to retain the home.

2. Addressing conflict and contesting of the will.

Sometimes surviving family members can contest the will or create conflict between siblings and other relatives. Conflict is especially common in situations where the deceased was married multiple times and had children with each marriage.

Another case where conflict can arise is when someone believes they should be entitled to more than they were left. For instance, the deceased verbally promised them a certain possession or an amount of money. Yet, when the will is reviewed, those details are not documented anywhere.

3. Making the New York probate process easier.

The probate process requires a review of the court to ensure everything is in order and the will is valid. Additionally, the probate process addresses specific issues, such as:

• Assigning an executor if one is not named in the will or trust.
• Ensuring proper appraisal of all assets in the estate.
• Paying any outstanding creditors.
• Collecting on any debts owed to the estate.
• Filing the will or trust with the probate petition with the appropriate court in New York.
• Ensuring assets and wealth are distributed correctly to the right beneficiaries, charities, and legatees.

Furthermore, having an attorney is vital if a loved one did not leave a will or trust or their intentions are not clear. It is equally beneficial to hire a probate attorney in New York when a loved one died without a will or trust to ensure proper distribution of their estate.

4. Providing assistance to create a legally binding and sound will or trust.

Young couple and insurance agent going through paperwork on a meeting

Taking the time to create a will or trust can help avoid conflict, make your intentions clear, and provide detailed instructions on how you want your estate distributed after your death. Obtaining help from a qualified probate lawyer ensures your loved ones will not have to guess what you wanted and can prevent most conflict.

For assistance in creating a will or trust, or representation during the New York probate process, please feel free to contact Joseph A. Ledwidge, P.C. at 718-276-6656 today!

Child Support by Agreement

When a couple with children is in general agreement on custody and child support, the best family law advice may be to document that agreement and ensure it meets the basic requirements to be approved by the child support court. In New York State, there are two ways to complete that process.

We will review both paths to reaching a child support agreement, what guidelines such an agreement should follow, and how to get the help you need to have your agreement approved.

Reaching Your Own Child Support Agreement

Cute little girl with dad leaning over vegetable counter.

When a breakup is civil and both parents are willing to work out all details of their proposed child support plan, this is commonly referred to as “informal negotiations.” They might engage a child support attorney to put their intentions into a legal format and advise them on any changes needed to have it approved by the family court.

Taking this route can keep legal costs to a minimum while protecting the best interests of the children. Sometimes, even with the best of intentions, the parents might become stuck on one or more key points and need more help to reach their goal of a mutual child support agreement.

Engaging Expert Help to Reach a Child Support Agreement

When both parents would like to create an agreement but struggle to do so on their own, they can choose Alternative Dispute Resolution or ADR. This process uses tools such as mediation—where a professional mediator works with the couple to resolve the obstacles, or collaborative law—where their respective lawyers negotiate the key factors together to reach a child support agreement before going to court.

So, even if the parents cannot reach an agreement themselves, they still have an opportunity to have a say in the outcome by resolving their disagreements through the ADR process. A family law consultation is a good way to begin this procedure and find out more about the resolution tools available to you.

What Should a Child Support Agreement Cover?

Woman lifting baby into the air.

Each state has guidelines which cover minimum requirements for child support, as well as requirements to get custody of a child. When crafting your own agreement, it will have to be in line with state law, fully outline the details of payment amounts, frequency, and duration, as well as being a voluntary and informed choice for both parents.

These factors must be true and documented:

• There is an open court case between the two parents.
• Both parents are aware of their child support rights and state guidelines.
• The parents both consider the agreement to be in their children’s best interest.
• Neither party is currently on (or has applied for) public assistance.
• Both parents enter the agreement of their own free will, without being forced or pressured to sign.

Finding Legal Guidance for Child Support by Agreement

Reaching a mutual agreement about child support has the same legal backing as court-ordered child support, once it has been filed and approved. The process for changing the order or for child support enforcement remains the same.

With 32 years of collective experience in Jamaica and Queens NY, the Joseph A. Ledwidge PC law firm knows how to draft agreements that will be approved by the appropriate authorities. When you need a family law attorney who understands your mutual desire to reach your own agreement for the security of your children, call us to get started.